Cincinnati Insurance Co. v. Orten

CINCINATTI INSURANCE COMPANY, Plaintiff,v.TRAVIS ORTEN, d/b/a TRAVIS ORTEN SUPER SUDS CAR WASH & LAUNDRETTE, MICHAEL FORRESTER, WILLIAM MILES, THE ESTATE OF JACOB ORT, by and through his Administrator, BRENDA L. NALIBOFF, and THE ESTATE OF KENDRA LEE, by and through her Administrator, SHEILA LEE, Defendants.

MEMORANDUM & ORDER

ALETA
A. TRAUGER UNITED STATES DISTRICT JUDGE

Pending
before the court is a Joint Motion to Dismiss (Docket No.
43), filed by the defendants, Travis Orten, d/b/a Travis
Orten Super Suds Car Wash & Launderette, Michael
Forrester, William Miles, the Estate of Jacob Ort, by and
through his Administrator, Brenda Naliboff
(“Ort”), and the Estate of Kendra Lee, by and
through her Administrator, Sheila Lee (“Lee”), to
which the plaintiff, Cincinnati Insurance Company
(“Cincinnati”), has filed a response (Docket. No.
46). For the reasons discussed herein, the motion will be
denied.

FACTS
& PROCEDURAL HISTORY

Cincinnati
is an insurance company based and incorporated in Ohio. On
June 23, 2015, Cincinnati issued separate Business Auto and
Commercial Umbrella Liability coverage policies (the
“Policies”) to Travis Orten Super Suds Car Wash,
a Tennessee car wash business owned and operated by Travis
Orten. The Policies ran through June 23, 2016, and included
coverage of an automobile registered to Travis Orten Super
Suds Car Wash. In relevant part, the Policies provided
coverage for the registered automobile as follows:

A. Coverage

We will pay all sums an ‘insured' legally must pay
as damages because of ‘bodily injury' or
‘property damage' to which this insurance applies,
caused by an ‘accident' and resulting from the
ownership, maintenance or use of a covered ‘auto'.

We will also pay all sums an ‘insured' legally must
pay as a ‘covered pollution cost or expense' to
which this insurance applies, caused by an
‘accident' and resulting from the ownership,
maintenance or use of covered ‘autos'. However, we
will only pay for the ‘covered pollution cost or
expense' if there is either ‘bodily injury' or
‘property damage' to which this insurance applies
that is caused by the same ‘accident'.

We have the right and duty to defend any ‘insured'
against a ‘suit' asking for such damages or a
‘covered pollution cost or expense'. However, we
have no duty to defend any ‘insured' against a
‘suit' seeking damages for ‘bodily
injury' or ‘property damage' or a
‘covered pollution cost or expense' to which this
insurance does not apply. We may investigate and settle any
claim or ‘suit' as we consider appropriate. Our
duty to defend or settle ends when the Liability Coverage
Limit of Insurance has been exhausted by payment of judgments
or settlements.

The
Policies also provided commercial umbrella liability coverage
as follows:

SECTION I - COVERAGE

A. Insuring Agreement

1. We will pay on behalf of the insured the ‘ultimate
net loss' which the insured is legally obligated to pay
as damages for ‘bodily injury', ‘personal and
advertising injury' or ‘property damage' to
which this insurance applies:

a. Which is in excess of the ‘underlying
insurance'; or

b. Which is either excluded or not insured by
‘underlying insurance'.

2. This insurance applies to ‘bodily injury',
‘personal and advertising injury' or
‘property damage' only if:

a. The ‘bodily injury', ‘personal and
advertising injury' or ‘property damage' is
caused by an ‘occurrence' that takes place in the
‘coverage territory'; and

b. The ‘bodily injury' or ‘property
damage' occurs during the policy period shown in the
Declarations; or

c. The ‘personal and advertising injury' results
from an ‘occurrence' that takes place during the
policy period shown in the Declarations; and

d. Prior to the ‘coverage term' in which
‘bodily injury' or ‘property damage'
occurs, or a ‘personal and advertising injury'
offense is committed, you did not know, per Paragraph 5.
[sic] below, that the ‘bodily injury' or
‘property damage' had occurred or had begun to
occur, in whole or in part, or that the ‘personal and
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.